an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David Barron raises the interesting question of whether conservative Justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal Justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five person conservative majority missed a chance in Heller: deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the Justices. Similarly, David asks whether the smart move by Republican-appointed Justices really is to hollow out Roe and Casey instead of overturning them.
Let me repeat what I have said before. We should not confuse the motivations of Presidents and party leaders in nominating certain Justices with the motivations of the Justices themselves.
A Republican President might well consider the likely effects on the party's political prospects if he nominates a Justice who will vote to overturn Roe as opposed to merely hollowing it out. In fact I think that since the failure of the Bork nomination, Republican Presidents have considered this as a factor. It is what I call the Republicans' reverse litmus test on Roe.
Once the Justice is appointed, however, that Justice will not engage in the same sort of calculations as the President who appointed him or her. The Justice will decide the cases according to the Justice's considered views about the Constitution. The Justice might vote to go slow or decide a question narrowly to avoid backlash. But that is different, I think, from voting against one's views about the best interpretation of the Constitution in order to help your party win the next election.
So it is very unlikely that Justices deliberately decide cases in ways they think are wrong in order to help their party's prospects in future elections. It is far more likely that Presidents make calculations of what a Justice's decisions are likely to do for the party's political interests when they decide whom to appoint.
Justices are most likely to take partisan considerations into account when they are in dissent and they are deciding how to write their dissents to mobilize support for their views. I have always thought that some of Justice Scalia's more over the top dissents are written to mobilize the conservative base. They often feature angry denunciations that are sure to be quoted in the newspapers. Certainly Scalia's recent dissent in Boumediene (The majority has the blood of American soldiers on its hands!), and his dissent in Lawrence (watch out, gay marriage is coming!) were fairly transparent attempts to create campaign issues for the 2008 and 2004 elections, respectively. But that is quite different from saying that Justice Scalia would cast his vote in order to get the Republican base fired up.
In the case of Heller, it's very unlikely that motivating the Republican base was a factor in any of the Justices' decisions. It is also very unlikely that it played a role in the Court's recent abortion decision, Carhart II. Rather, it is likely that the Justices voted the way they did because of their substantive views on the Second Amendment and the right to abortion. Posted
by JB [link]